SWAPAN KUMAR CHAKRABORTY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) By this writ application the petitioner prays for mandate upon the respondent to pass an order on promotional post of Inspector of Police and further prays for such promotion with retrospective effect after properly maintaining the seniority of the petitioner and grant of service benefits. The short point involved in this application as to whether consideration of the case of the petitioner for promotion to higher post could be otherwise rejected on the ground of the negative recommendation of D.C.C., A.P. Royganj or on the basis it does not appear to be deserving case of the confirmed post. It is true that the petitioner was subjected to punishment of imposition of penalty which at the material time, ceased to remain in force. Apart from that the petitioner was not given the copy of the negative recommendation which is the foundation of the rejection of the prayer of the petitioner for promotion. It appears from the documents produced by Mr. Banerjee, which reveal the following facts : The petitioner was appointed Temporary Ar. S.I. on 21.9.66 in the West Bengal Police vide College Order No. B-142(2) dated 22.9.66 by the A.I.G. of Police, West Bengal. It is fact that the petitioner was dismissed from service w.e.f. 17.1.1977 on a departmental proceeding No. 11/75 of S.A.P, 4th Bn. Raiganj. The petitioner while attached to SAP 4th Bn., Kasba Raiganj, was nominated to undergo C.S.W.T. Training at Indore. He was deputed to Barrackpore to accompany other trainees. During stay at Barrackpore he indulged in misconduct in that (1) on 12.12.74 he went to draw Rifle in the Magazine of SAP 1st. Bn. in drunken condition. Due to excessive drinking he had lost his balance and fell flat on the verandah of the Magazine. (2) He could not be sent to undergo C.S.W.T. Indore Training and was returned to SAP 4th Bn. On arrival to SAP 4th Bn., he made false statement before the competent authority being a responsible officer of the disciplined Police force, for this Pro. No. 11/75 was drawn up against the petitioner. In the final order of the proceeding the then Commander, SAP, 4th Bn., reduced his pay from Rs. 465.00 to Rs. 450.00 for a period of 24 months and the proceeding file was forwarded to the D.I.G., AP., for his perusal. D.I.G., A.P. took his personal hearing and in his revisionary power issued show cause notice and on receipt of reply of show cause notice he was dismissed from service w.e f. 17.1.77 (Ref. D.I.G., A.P. Memo No. 426/R 17-76 dated 14.1.77 and B.O. No. 113 dated 17.1.77, B.O. No. 114 dated 17.1.77). The petitioner then submitted Memorial before the Honourable Governor of West Bengal, Governor, W.B., was pleased to peruse the memorial and records and set aside the order of dismissal considering his young age but order to reduce his pay from Rs. 465.00 to Rs. 450.00 for 24 months, granting E.L. and E.O.L. for the absence. (Copy of G.O. enclosed) The petitioner was re-instated to his former service as Ar.S.I. vide B.O. No. 878 dated 28.4.78 and rejoined his duty on 28.4.78 AM at Bn. Hqrs (B.O. No. 879 dated 28.4.78). Proceeding No. 11 dated 26.7.78 was drawn up against the petitioner for his gross misconduct and dereliction of duty and his pay was reduced for 4 months (Copy of Charge enclosed). It is fact that Proceeding No. 2 dated 21.1.80 was drawn up against the petitioner for his gross dereliction of duty and his pay was reduced for 4 months (Copy of Charge enclosed). It is fact that Proceeding No. 2 dated 21.1.80 was drawn up against the petitioner for his gross dereliction of duty and indisciplined conduct Copy of Charge enclosed). Due to insufficient evidence, the proceeding was filed giving benefit of doubt. It is fact that the petitioner was made quasi-permanent w.e f. 21.9.69 Vide S.O. No. 2208 dated 6.10.69. He was not confirmed in time because of bad service records and due to pendency of departmental proceeding against him. It is fact that due to pendency of enquiry into proceeding against him and running of pay reduction period he was not allowed to cross the efficiency bar. It is fact that due to service record of the petitioner he was not considered fit to get benefit of N.T.S.C. Post Vide AIG of Police, W.B. Memo. No. 1559- ADM/SC dated 31.5.85 and Special Officer, W.B. Police Directorate Memo. No. 650 SC/SC 6-84 dated 6.3.88 (Copies are posted in S.S.) The petitioner was re-instated to his former service as Ar.S.I. Vide G.O. No. 2550 PL dated 15.3.78. He was granted 320 days E.O.L. from 12.6.77 to 27.4.78 as a result the periodical increment of pay is deferred. It is fact that the pay of the petitioner was fixed at Rs. 450.00 as per ROPA, 1981 in the time scale of Pay Rs. 380-15-500-20-700-25-850-30-910.00. It is fact that the petitioner was allowed to cross E.B. vide B.O. No. 1721 dated 3.8.82, after completion of his period of punishment".

(2.) It appears from the submission of Mr. Banerjee that the petitioner's scale was fixed at Rs. 540.00 in terms of ROPA, 1981 the time scale of which is Rs. 380-15-500-20-700-25-850 30-910.00. It is also an admitted position that the petitioner is allowed to cross-efficiency bar, at this stage Mr. Banerji is asked to explain as to how adverse factors which would operate to the prejudiced of the petitioner and why the petitioner could be denied the service benefit while the petitioner was granted service benefits as also the order allowing the petitioner to Cross Efficiency Bar. It us well settled now the alleged misconduct if there be any or the imposition of punishment if there be any cannot operate to the detriment of the rights of a person in a case of the like nature. The subsequent conduct and act of the respondent has and had the effect of wiping the misconduct and punishment. Reference has to be made to a decision of the case of State of Punjab Vs. Dewan Chuni Lal reported in 1970 SLR 375 : AIR 1970 SC 2086 (SC) where the learned Judge of the Supreme Court dealt with the situation which is more or less similar to the facts of this case. The relevant portion of the above decision is as follows.

(3.) The other one is in the case of Union of India Vs. Habibul Haque, reported in 1978(1) SLR 748. Relevant portion of the decision is quoted hereinbelow : "The learned Judge, in our view, has rightly observed that the authorities had condoned the misconduct of the respondent for which he had been punished and his slate had been wiped clean. It is, however, contended on behalf of the appellants that the fact that the respondent was granted promotion in spite of the fact that he was punished is a matter to be considered by the reviewing authority. We are, however, unable to accept this contention. In our view, before issuing the show-cause notice, that authority should have taken into consideration the fact of the respondent being promoted to the post of Preventive Officer, Grade I. The authority therefore, did not apply its mind properly before it proposed for the imposition of the penalty of dismissal on the respondent.